In a second appeal under the CPC challenging dismissal of a specific performance suit, the High Court dismissed the appeal, finding the appellant failed to prove execution of the sale agreement or his readiness and willingness to perform.
Second appeal dismissed confirming judgments and decrees of courts below; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.258 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.258 of 2000
A.Ramalingam ... Appellant/Appellant/ Plaintiff Vs 1.Ponnusamy (Died) ... 1st Respondent/Respondent/ Defendant
2.Kuppayee Ammal
3.Palaniammal 4.Saraswathi
5.Samppornam ... Respondents 2 to 5
[RR2 to 5 were brought on record as LRs of the deceased sole respondent vide order dated 05.11.2020 made in C.M.P.(MD) Nos.3918, 3919 and 3921 of 2020 in S.A.(MD) No.258 of 2000]
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 05.02.1999 made in A.S.No.290 of 1997 on
the file of the II-Additional District Court, Tiruchirappalli, confirming the
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S.A.No.258 of 2000
judgment and decree dated 28.08.1997 made in O.S.No.209 of 1991 on the file of the Sub Court, Karur.
For Appellant : Ms.V.T.Harshini for Mr.D.Nallathambi For RR2 to 5 : No appearance
J U D G M E N T
1.1. The plaintiff in the suit for specific performance is the appellant.
The suit was dismissed by the trial Court and the findings of the trial Court were confirmed in first appeal. Aggrieved by the concurrent findings against him, the plaintiff is before this Court. Pending second appeal, the 1st respondent/defendant died and his legal representatives were brought on record as respondents 2 to 5.
1.2. According to the appellant/plaintiff, he entered into a suit sale
agreement dated 15.01.1989 marked as Ex.A.1 with the deceased first respondent/sole defendant for purchase of 'A' Schedule property described therein. The agreed sale consideration as per the agreement was Rs.90,000/-
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and according to the appellant, he paid an advance amount of Rs.30,000/on the date of sale agreement itself. The time for completion of the sale transaction was fixed as six months. As per the recitals in the agreement, the appellant was directed to pay Rs.40,000/- to one Periyasami, the fourth son-in-law of the deceased first respondent to discharge the debt incurred by the first respondent. It was agreed that the balance of Rs.20,000/- should be paid by the appellant within the period stipulated in the agreement and get the sale deed executed in his favour.
1.3. It was further averred in the plaint that the deceased first respondent tried to encumber the property even before expiry of the period stipulated in the agreement and hence, the appellant issued a notice on 22.05.1989 calling upon the first respondent to receive the balance sum of Rs.20,000/- and execute the sale deed. According to the appellant he had not received any reply for the said notice from the first respondent and thereafter, again another notice was issued on 13.07.1989 by registered post as well as telegram. Since the deceased first respondent failed to come forward for execution of the sale deed by receiving the balance sale ___________Page 3 of 12
S.A.No.258 of 2000
consideration, the appellant was constrained to file the suit for specific performance of the suit agreement.
1 and six documents were marked on his side as Ex.A.1 to Ex.A.6. The deceased first respondent/sole defendant was examined as D.W.1 and his fourth son-in-law viz. Periyasami, referred to in the plaint, was examined as D.W.2. No documents were filed on behalf of the first respondent.
S.A.No.258 of 2000
appellant/plaintiff failed to prove due execution of the suit sale agreement and also failed to prove his readiness and willingness and consequently, dismissed the suit. Aggrieved by the same, the appellant filed an appeal in A.S.No.290 of 1997 on the file of the II-Additional District Court, Tiruchirappalli. The first appellate Court concurred with the findings of the trial Court. Aggrieved by the same, the appellant is before this Court.
“1. Is the learned II Additional District Judge correct in dismissing the appeal without proper consideration of evidence? and
2. Is the learned II Additional District Judge correct in not giving an opportunity to prove the validity of suit agreement by sending the disputed thumb impression for expert opinion?”
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S.A.No.258 of 2000
appellant filed an application for sending the suit sale agreement for comparison of the thumb impression of the first respondent found in Ex.A.1 sale agreement with the admitted thumb impression and the said application was allowed on payment of cost of Rs.3,000/-. However the appellant failed to pay that amount and hence, the application was dismissed. Subsequently, another application was filed before the trial Court for sending the disputed thumb impression for comparison and the same was also dismissed by the Court below on the ground that second application on the same cause of action cannot be maintained and the revision filed by the appellant against that order was also dismissed. It is also stated by the learned counsel for the appellant that pending first appeal, the appellant filed an application in I.A.No.436 of 1998 for sending the disputed thumb impression for comparison with the admitted thumb impression and the said application was erroneously dismissed by the first appellate Court.
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impression for Expert's opinion for comparison with the admitted thumb impression of the first respondent. The learned counsel further submitted
that in support of execution of the suit sale agreement, the appellant entered the box as P.W.1 and deposed about due execution of the suit sale agreement and nothing has been elicited in the cross examination of the appellant and therefore, the Courts below ought not to have overlooked the evidence of P.W.1 while considering due execution of Ex.A.1.
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examine both the attestors to the agreement and also the Scribe, whereas one of the attestors to the suit sale agreement viz., Periyasami was examined on behalf of the respondent as D.W.2 and his evidence is not helpful to the appellant to prove execution. Therefore, the Courts below had taken adverse inference against the appellant for his failure to examine the attestor or Scribe of Ex.A.1 sale agreement to prove due execution of the agreement.
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opportunity to send the disputed thumb impression for Expert's opinion by allowing the application filed by him on payment of cost of Rs.3,000/-. However, he failed to pay the amount and capitalise on the order passed by the trial Court. Subsequently, he filed second application for sending the disputed document for comparison and the same was rightly dismissed by the trial Court citing the earlier order. The said order was confirmed in revision by this Court. Therefore, the default is on the part of the appellant and he cannot put the blame on the Court and contend that he was not given ample opportunity to compare the disputed thumb impression in Ex.A.1 sale agreement with the admitted thumb impression. Therefore, the said contention of the learned counsel for the appellant is not acceptable to this Court.
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(i) this Second Appeal is dismissed by confirming the judgments and
decrees passed by the Courts below; and
(ii) in the facts and circumstances of the case, there would be no order
as to costs.
31.01.2023
NCC: Yes Index:Yes/No Internet:Yes
abr
To
2.The Sub Judge, Karur.
3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
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S.A.No.258 of 2000
S.SOUNTHAR, J.
abr
S.A.No.258 of 2000
31.01.2023
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3 issues framed by the court
Whether the learned II Additional District Judge correctly dismissed the appeal without proper consideration of evidence?
Whether the learned II Additional District Judge correctly refused the application to send the disputed thumb impression for expert opinion?
Whether the appellant proved due execution of the suit sale agreement and his continuous readiness and willingness to perform the agreement?
1 provisions across 1 enactments
A. Ramalingam
Ponnusamy (Died)
Kuppayee Ammal
Palaniammal
Saraswathi
Samppornam
S.Sounthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
